People v. Smith
| Decision Date | 01 November 2016 |
| Citation | 43 N.Y.S.3d 771,2016 N.Y. Slip Op. 07106,28 N.Y.3d 191,66 N.E.3d 641 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Roni SMITH, Respondent. The People of the State of New York, Appellant, v. Keith Fagan, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Cyrus R. Vance, Jr., District Attorney, New York City (Dana Poole, Alan Gadlin and David M. Cohn of counsel), for appellant in the first above-entitled action.
Robert S. Dean, Center for Appellate Litigation, New York City (David J. Klem of counsel), for respondent in the first above-entitled action.
Darcel D. Clark, District Attorney, Bronx (Justin J. Braun, Clara H. Salzberg and Nancy D. Killian of counsel), for appellant in the second above-entitled action.
Robert S. Dean, Center for Appellate Litigation, New York City (Barbara Zolot of counsel), for respondent in the second above-entitled action.
At the time of its enactment in 1998, Penal Law § 70.45(1) () provided that "[e]ach determinate sentence also includes, as a part thereof, an additional period of post-release supervision"(PRS). A substantial number of trial courts mistakenly interpreted the provision to mean that PRS arose as a matter of law and did not need to be pronounced at sentencing.1 Thereafter, in People v. Catu , 4 N.Y.3d 242, 792 N.Y.S.2d 887, 825 N.E.2d 1081 (2005), we held that PRS "is a direct consequence of a criminal conviction" such that a court accepting a guilty plea from a defendant must ensure that the defendant is aware of the PRS component of his sentence in order for the defendant "to knowingly, voluntarily and intelligently choose among alternative courses of action" ( id. at 244–245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 ). We explained that "[a]lthough the court is not required to engage in any particular litany when allocuting the defendant, ‘due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant’ " ( id. at 245, 792 N.Y.S.2d 887, 825 N.E.2d 1081, quoting People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Therefore, a defendant who is not apprised of the PRS component is entitled to reversal of the conviction and automatic vacatur of the plea, and the defendant is not required to demonstrate that he would not have pleaded guilty had he been aware of the PRS component (Catu, 4 N.Y.3d at 244–245, 792 N.Y.S.2d 887, 825 N.E.2d 1081 ).
On these appeals, neither defendant Smith nor defendant Fagan was apprised by the court of the PRS component relative to the sentence imposed on their guilty pleas entered in January 2002 and May 2000, respectively. They brought post-conviction motions to challenge their Catu -infected pleas and convictions that were utilized later to enhance sentences for subsequent crimes, essentially seeking retroactive application of Catu to disqualify their predicate offenses. In each case, defendant was satisfied with the plea and does not now claim innocence. Rather, because a subsequent crime has predicate felony implications, defendants challenged the use of their earlier convictions as "unconstitutionally obtained" on the ground that they were not apprised of the PRS component of their sentence. Although each defendant's challenge to the use of the Catu -infected conviction originated under the guise of an ineffective assistance of counsel claim, the primary issue that we must decide is whether, pursuant to either federal or state retroactivity principles, Catu applies retroactively in enhanced sentence proceedings. We hold that it does not, and, therefore, reverse the orders of the Appellate Division in each appeal.
In November 2001, defendant Roni Smith pleaded guilty to the violent felony of robbery in the first degree (Penal Law §§ 70.02[1] ; 160.15[4] ) in satisfaction of all counts in the indictment. The trial court failed to advise defendant that his sentence also included a mandatory term of PRS.2 In January 2002, he was sentenced to a determinate term of seven years' imprisonment. According to defendant, he filed a timely notice of appeal,3 but it appears that such appeal was never perfected.
In April 2007, one year before his seven-year term of imprisonment expired, defendant was conditionally released and the Department of Corrections and Community Supervision (DOCCS) administratively imposed a sentence of five years' PRS pursuant to Penal Law § 70.45(1). While defendant was serving his administratively-imposed PRS term, we held that PRS sentences must be "pronounced" by the court pursuant to CPL 380.20 and 380.40 and may not be administratively imposed (Matter of Garner v. New York State Dept. of Correctional Servs., 10 N.Y.3d 358, 859 N.Y.S.2d 590, 889 N.E.2d 467 [2008] ; see People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] ).
On October 14, 2008, the sentencing court held a resentencing proceeding pursuant to Correction Law § 601–d.4 At that point, defendant had served 18 months of PRS. The court stated that it was unsure if it had previously advised defendant of the PRS term because it did not have the minutes. Defendant stated that he would accept a minimum PRS term—2 ½ years—and that if the People agreed, defendant "would waive waiting for the actual minutes to arrive and waive any claims he had with respect to the plea without the court reimposing the sentence again with the actual term of [PRS] as part of the sentence, nunc pro tunc." The court then sentenced defendant to seven years' imprisonment with the minimum 2 ½ year term of PRS, nunc pro tunc to January 2002. So, as of that date, defendant, for the second time, pleaded guilty to robbery in the first degree, was advised of PRS and served his PRS sentence, which expired on October 23, 2009.
In December 2010, he was indicted on two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b] ; [3] ) for an incident that occurred on November 17, 2010. He pleaded guilty to the first count of the indictment in satisfaction of both counts. Prior to allocution, the People filed a statement of predicate violent felony conviction (Penal Law § 70.04 ; CPL 400.15 ) that utilized defendant's January 2002 first-degree robbery conviction as a predicate offense. At the plea proceeding, defendant stated that he was the same person mentioned in the statement and that he did not wish to challenge the constitutionality of his prior conviction. The court adjudicated defendant a second violent felony offender. At the June 6, 2012 sentencing proceeding, defendant was sentenced to a determinate seven-year term of imprisonment with five years' PRS.5
In June 2014, defendant made a motion to set aside his sentence pursuant to CPL 440.20(1) on the ground that defense counsel at his 2012 sentencing was ineffective for not challenging the 2002 predicate conviction, which, according to defendant, was obtained in violation of Catu. Defendant argued that his predicate conviction was "unlawfully obtained" under CPL 400.15(7)(b)6 because defense counsel failed to investigate the predicate conviction and lacked a strategic basis for not doing so. He sought vacatur of his 2012 sentence, disqualification of his 2002 robbery conviction as a predicate offense, and resentencing as a first violent felony offender.
Defendant supported the motion with an affirmation of defense counsel who represented defendant relative to the 2012 conviction. Counsel explained that he failed to investigate the proceedings that led to the 2002 conviction, and he did not ask defendant if the court had apprised defendant of PRS. He was unaware that the predicate conviction had been unconstitutionally obtained at the time of defendant's arraignment on the predicate felony, and maintained that, had he known about the Catu error, he would have challenged the predicate conviction as "unconstitutionally obtained" and defendant would not have been adjudicated a second violent felony offender.
The People opposed the motion, claiming that a Catu error does not rise to the level of a federal constitutional violation and that Catu did not apply retroactively to convictions that had become final prior to the Catu decision.
Supreme Court, relying on People v. Fagan , 116 A.D.3d 451, 983 N.Y.S.2d 28 (1st Dept.2014), granted defendant's motion, holding that he was deprived of the effective assistance of counsel due to counsel's failure to challenge the predicate conviction. As relevant here, Supreme Court determined that Catu applied retroactively. The court resentenced defendant as a first felony offender to seven years' imprisonment with five years' PRS.
Moreover, the Court held that although the 2002 conviction preceded the Catu decision, "the rule of law announced in Catu applies retroactively to pre-Catu convictions"(id. [citations omitted] ).
A Judge of this Court granted the People leave to appeal.
On April 18, 2000, defendant Keith Fagan pleaded guilty to attempted robbery in the first degree.7 The following month, he was sentenced as a second felony offender to a determinate term of seven years' imprisonment. The court did not apprise defendant at sentencing that he was subject to a...
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